Notice & Comment

A Wise and Balanced Case for Shoving the Pendulum Toward Technocracy, by Richard Murphy

*This is the third post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.

Professor Araiza’s Rebuilding Expertise provides a terrifically informative, wise, and balanced tour of the evolution of agency rulemaking as well as the legislative, executive, and judicial structures that have developed to control it. It is bursting with ideas for improving regulation by enhancing agency expertise and its role in rulemaking. Many of these ideas involve internal reforms of agencies designed to enhance their ability to make expert regulatory judgments and implement them in policy. Other ideas involve combatting the power of political forces outside agencies (most notably in the White House) to interfere with agency expertise.  As someone who has always had trouble following the presidential control model of administration, I find Professor Araiza’s diagnosis of the problem of undue political interference with agency expertise and many of his proposed solutions congenial and persuasive.

At a high level of framing, Professor Araiza ties a decline in agency expertise to a decline in public trust in agency governance, and he contends that these two phenomena are so related that “repairing one requires repairing the other.” (p. 2) There must be some truth in this diagnosis—or at least I hope there is. Notwithstanding polarization and news silos, it seems likely that agency expertise should at least sometimes engender public trust—i.e., the fact that an agency has been doing an excellent, expert job will sometimes seep into the public consciousness in some fashion. And an agency that enjoys public trust should be able to do a better job governing—e.g., it will have an easier time gathering information; it will need to devote less resources to enforcement, etc. Improving agency expertise could, to some indeterminate degree, improve public trust, and improving public trust could, to some indeterminate degree, improve agency expertise, creating a happy rather than vicious circle. This happy circle, in turn, might dissolve the supposed democracy deficit of agency governance given that it turns out that good governance is what the people want.

I am inclined to think that this framing reaches a bit further than it can grasp. It seems to me that the government is too vast and variegated a thing to support a general claim that agency expertise has substantially declined as a general matter.  Some agencies have fantastically high levels of expertise, others are, shall we say, not so good. Also, I found myself nodding in agreement when I read Professor William Funk’s commentary in this series where he cites factors such as decades of government-bashing rhetoric and public resentment of regulatory interference, rather than flawed regulations, as likely sources of public distrust in agency governance. The flip side of this point is that improving regulations (and regulatory transparency) are unlikely to improve public trust as much as one might hope.

This bit of pushback, however, does not undermine Professor Araiza’s powerful case for protecting andimproving agency expertise—especially by protecting it from undue political interference. I found his discussion of presidential interference in Chapter 5 especially illuminating in this regard. With characteristic nuance, Professor Araiza describes the project of this chapter as “finding the appropriate balance between expertise and politics, and creating structures and procedures that can best implement that balance.” (p. 90) He acknowledges that the president, vested with Article II’s executive power andpolitically accountable to the national public, should be able to “export” some of “his own values into the myriad discretionary judgments” that implementation of the laws requires. (Id.) Moreover, it would be “undesirable as a policy matter to place the responsibility of making … value judgments solely in the hands of unelected administrators.” (Id.) Absolute presidential control, however, would violate congressional mandates and undermine regulatory expertise, the basic justification for agency governance. 

Professor Araiza then makes his case that important elements of our current presidential governance regime skew too strongly toward politics and away from expertise. Two of his targets include centralized OIRA review of agency rulemaking and presidential administration (a la Justice Kagan). OIRA’s regime of cost-benefit analysis, although it may appear both to be generally applicable and expert in nature, is “episodic,” “narrowly focused,” and “opaque,” distorting the operation of agency regulatory expertise, albeit with a value-laden “veneer of technocratic analysis.” (pp. 95, 98) Moreover, the supposeddemocratic bona fides of this regime are questionable given that “it is fair to ask whether OIRA review successfully transmits systematic presidential preferences about regulation to agencies.” (p. 100) 

By contrast, presidential administration, at least where it takes the form of a Rose Garden ceremony where a president effectively tells an agency to adopt a rule, does make presidential commitment to a particular policy clear. The potential of a presidential directive to interfere with the operation of agency regulatory expertise is, however, even greater than that of OIRA review. (p. 104) Less obviously, the democratic rationalization for such interference—i.e., the president wants the rule and she, not the agency head, was elected—is problematic given that a presidential directive will tend to undermine later notice-and-comment procedures that help democratize rulemaking. (pp. 108).

I find these critiques persuasive but approach them with less balance. To a rounding error, no one votes for the president (or for the president’s electors) because they think that person will do an especially good job guiding OIRA review of regulations or, two years into the presidency, will issue a particular directive to an agency instructing it to adopt a particular policy via a particular rule. If Congress does indeed create a democracy deficit when it delegates power to agencies to make policies which necessarily entail value judgments, this deficit cannot be dissolved by empowering the president to make these value judgments when she feels like it, short-circuiting statutory participatory procedures along the way. It is hard-wired into our system that presidents will always have immense practical and legal power over administration. This great power does not entail a democratic license to make policy choices that have been assigned, via democratic means, to agencies.

Perhaps we should not be surprised that presidents, the most powerful actors in our government, have, in keeping with political incentives, accumulated questionable amounts of power to control agency rulemaking. This observation in turn raises the question of whether we can reasonably expect theinstitutions that have created the current equilibrium of forces to strike a new, better balance that is more respectful of agency expertise. If, for example, Congress wanted badly enough to reduce the number of political appointees in agencies or to defund OIRA cost-benefit review, it could do so. Presidents have kept OIRA review in place for decades precisely because it centralizes control, and they give marching orders to agencies because, as the saying goes, they can. Still, one can hope that works such as Professor Araiza’s excellent Rebuilding Expertise will affect how the relevant players think about their respective powers and how agencies can best serve the public interest in our hyper-complex world. Along theselines, it seems fair to hazard that forty years of leading political figures, judges, and scholars pushing the unitary executive theory has had real world impacts on law and administration by affecting how people think about power and governance. Perhaps Professor Araiza’s work (along with that of other scholars of expertise, such as  Professor Sidney Shapiro and Elizabeth Fisher) will have some countervailing effect.

Richard Murphy is the AT&T Professor of Law at Texas Tech University School of Law.

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